At the 26th convening of the UIA World Mediation Forum in Zurich on March 5-6, 2019, a panel on whether mediation should be compulsory, among representatives of France, the US, Switzerland, and Italy, wrestled with intriguing philosophical considerations.\u00a0 Is compulsory court annexed ADR inconsistent with the principle of judicial access?\u00a0 Should conciliation, rather than mediation, be compulsory with respect to municipal or other citizen concerns?\u00a0 Is compulsory mediation of parental concerns about children\u2019s education more advisable than compulsory mediation of business-to-business concerns?\u00a0 <\/p>\n\n\n\n
Catherine LeClerq of Armand Avocats in Paris made a strong argument for compulsory mediation of disputes between state employees and administrative agency employers, a plan that has been experimentally introduced in 2016.\u00a0 <\/p>\n\n\n\n
Pasquale Orrico, of Arlenghi Agostini Avvocati in Milan, updated the complex and pervasive (one might say overreaching) compulsory mediation regulations in Italy.\u00a0 Topics subject to compulsory mediation in Italy include real estate, tenancy, business lease, banking, and insurance. The only thing compulsory, however, is a first meeting; if, after a mediator explains the process, the parties decline to engage in mediation, then they are relieved of any further obligation and may proceed with their lawsuit.\u00a0 In that sense, it seems to mandate compulsory awareness, consideration, and intentional rejection of mediation, rather than compulsory participation in the process itself.\u00a0 Clients as well as attorneys must attend this first meeting.\u00a0 As a result of this regimen, between 160,000 and 190,000 mediations per year are reported by the Italian Ministry and Justice; the number of settlements resulting from these mediations (i.e., sessions held as a result of these first meetings) is between 40-45%.\u00a0 The mediations are conducted by bar associations, chambers of commerce, and other entities.\u00a0 Voluntary mediation has risen 14% during this period \u2013 an interesting side-effect.\u00a0 <\/p>\n\n\n\n
Katarzyna Przluska-Ciszewska, President of the Polish Bar Council Mediation Center, reported on a confusing current proposal by the Polish Ministry of Justice addressing family law and divorce proceedings.\u00a0 It requires, before formal filing of a divorce action, an informational conference meant to encourage reconciliation and, if not possible, outlining plans for child custody and financial support.\u00a0 These matters must be notarized or officiated by a court in order to be enforceable \u2013 agreements met as a result of private mediation are not enforceable.\u00a0 The proposal is that couples be informed of the \u201csocial consequences of the breakdown of the marriage” and the availability of \u201ctherapy and other means of family support.\u201d\u00a0 Part of this support is family mediation which, if not mandatory, is strongly brought to the parties\u2019 attention.\u00a0 If mediation is elected, the mediator presents to the court a \u201creport containing the results of the mediation\u201d as well as confirmation that the parties have been advised of the \u201csocial consequences\u201d of the divorce.\u00a0 Only after this report is delivered may a petition for divorce be initiated.\u00a0 Thus, the mediator is a vessel to convey the concern of the state, rather than facilitating an autonomous decision by the parties.\u00a0 Katarzyna added concern that the use of the term \u201cmediation\u201d to describe this process threatens the understanding and acceptance of compulsory commercial mediation, which is also being considered in Poland.\u00a0 <\/p>\n\n\n\n
Jeff Abrams of Houston, Texas, related the rise of compulsory mediation in that state.\u00a0 Key developments were legislative action to empower judges to require mediation prior to scheduling trials; training respected leaders in the legal community as mediators; presenting judges with the efficacy of using these mediators; maintaining metrics of early use of mediation in the original jurisdictions to measure its effectiveness in reducing dockets; and \u201cscaling\u201d the system to courts across the state.<\/p>\n\n\n\n
Cezary Rogula, of Krakow, Poland, and Jennifer Lygren, of\nGeneva, Switzerland, reported on the application of mediation to administrative\nand quasi-public contexts. Jennifer\nexplained an initiative involving regulation of financial institutions \u2013 mainly\nbrokerages \u2013 with an eye to financial protection. Investors may use ADR to pursue errors or misfeasance\nof financial service providers through legislated processes. It requires a qualified mediator (skilled\nboth in financial instruments and in mediation) to oversee the process. Private mediation bodies are currently\ncompeting to fashion proposals for the government to approve their\nadministration of the process. A\nclaimant client must first attempt direct negotiation and the request must come\nbefore any arbitration or other adjudicative proceeding. The process is funded by the financial\nindustry participants, and participation is mandatory. Typical\nbanking activities are not included \u2013 the scope is limited to executing securities\norders, offering investment advice, managing portfolios, etc. Cezary discussed mediating disputes involving\npublic authorities, as part of the Polish code of administrative\nprocedure. The process has a goal, not\nof coming to a settlement agreement, but an \u201carrangement\u201d by which the\nauthority will deal with the private party on an ongoing basis. Proceedings are not public, and the mediator\nis a potential witness in any ensuing court actions. An example is the registration of a\ntrademark. A private publisher of\nmagazines confronted difficulty in registering the titles of those magazines as\ntrademarks \u2013 an administrative decision. \nThe mediation process allowed the presentation of factual, marketing,\nand expert evidence and informal discussion. \nOf 29 proposed trademarks, 12 were successfully registered as a result\nof this process, to the client\u2019s satisfaction. \nThe process allowed the airing of both the agency\u2019s and the petitioner\u2019s\nconcerns, and the result was understood rather than resented or coerced. A second example was made involving\nconstruction, with building permit, historical preservation, and zoning\nissuance.<\/p>\n\n\n\n
A panel addressed the application to mediation of concepts of marketing and economics.\u00a0 Thiruvengadam B.C., of Bangalore, India, reminded the group that demand arises from necessity \u2013 if litigation is necessary and arbitration is merely an option (even a luxury), where does mediation lie?\u00a0 Indian judges dispose of an average of 1,000 cases per year, and 10,000,000 cases are filed in Indian courts each year.\u00a0 The judicial system is complex, and it takes 10-20 years for litigation to yield a final outcome.\u00a0 Citizens therefore either give up or use alternatives to litigation \u2013 mosques, associations, mafia or other unconventional processes.\u00a0 Court-annexed mediation was first introduced in 2000; by now, 120 cases, on the average, are referred to mediation each day with a success rate of 69%.\u00a0 The quality of court-annexed commercial centers has been questioned (court-annexed mediation is free and mediators receive low fees) and there is a move to outsource mediation to private institutions.\u00a0 Gerard Kuyper of Brussels evoked the classic supply\/price\/demand curve and suggested that the market of justice has a strict and unmodified supply line, with price determined only by demand.\u00a0 Yet individual behaviors within this market are wildly different \u2013 Belgium has litigation at the amount of 7 to 1,000 but Netherlands less than one per 1,000.\u00a0 Another related metric is time to resolution \u2013 Belgium has clearance of 100 days and far longer for Netherlands.\u00a0 Gerard suggested that dispute behaviors are seldom rational and instead involve cognitive dissonances such as risk\/loss aversion and emotional, rather than economic, choices. \u00a0David Lutran of Paris encouraged the presentation of mediation as a product competing with — rather than complementing — others on the market, subject it to marketing analysis such as providing for the economic welfare of the customer.\u00a0 These considerations may include user assessment of the likelihood of satisfaction at trial or in other processes.\u00a0 The attraction of disputants to traditional justice is fundamentally irrational, and distinctly branding mediation would seem to hinge on appeal to similarly emotional characteristics.\u00a0 The mythology of the judge as a cultural figure is unique \u2013 mediators cannot hope to compete.\u00a0 Put otherwise, the image of a blindfolded woman holding a balance and promising fairness through the dispassionate application of social norms is far stronger than the image of a handshake.\u00a0 David suggested that emphasizing neutrality, expectations, control and the wide scope of potential outcomes are possibly effective branding approaches.\u00a0 Emphasis should be placed on getting what a party wants, rather than defeating another party \u2013 that is, seeking self-interested profit from the conflict rather than a pursuit of Justice.”\u00a0 The underlying approach is to satisfy the customer by proposing a process better designed to meet the customer’s own goals.\u00a0 Mediation is not a deviate of institutional justice, but a direct method of obtaining stated economic goals in a rational, self-interested manner that is designed to accurately reflects the stakes involved.<\/p>\n\n\n\n
A successful Mediation Forum was made even more successful\nwith a panel on \u201cUsers of Mediation,\u201d featuring Jean Marguerat of Froriep Legal\nSA in Geneva, Torsten Bartsch of Caterpillar Sarl, Laurent DeVille of Froriep,\nand Franz Wiehler of Siemens AG. Torsten\npresented an unscientific survey of Lake Geneva-based general counsel, asking\nthe preferred ways to deal with disputes. \nBy far the most favored was direct conversations between the\nparties. There was little difference\nbetween arbitration and litigation, except in terms of certainty of results. Arbitration\nwas preferred only in highly technical matters. \nFranz concentrates on conflict identification and management within the enterprise. He finds that identifying and assisting team\nmembers\u2019 conflicts can add strength and value to a team. He considers the greatest roadblock to\ncorporate use of mediation to be awareness of its attributes and\npossibilities. Laurent reports that a GC\u2019s\nrecommendation to a Board to engage in mediation is met with skepticism based\non unfamiliarity, placing pressure on the GC that the outcome be\nfavorable. Cost is less the issue than\noutcomes. In particular, a question is\nraised how an external facilitator can progress negotiation more effectively\nthan an informed internal company representative. He\nalso noted that, based on his experience of practicing for 10 years in Japan,\nthe cultural expectations of participants must be respected. Dispute avoidance in Japan is a matter of\ndignity, reflecting a duty to behave in a certain way. This is particularly true in family and labor\ncases. Mediation is offered through a\nMediation Court, and the process is formal, conducted by non-lawyers seeking\nconsensus rather than vindication of rights. \n<\/p>\n\n\n\n
The final speaker at the Forum was Wang Fang, Deputy\nSecretary General of the Mediation Center of the China Counsel for Promotion of\nInternational Trade in Beijing. She was\nintroduced by Clarisse von Wunschheim of Altenburger Ltd, who encouraged a\nrealistic view of the ascendency of the economies of Russia, India and China,\nwhich have real-world aggressive aims and real-world associated business\ndisputes. And, when considering China,\nsize matters: Civil and commercial disputes brought to the courts in China in\n2018 approximated 8,800,000. Clarisse\nbelieved that the preferred method of commercial dispute resolution is\narbitration using administered rules other than CIETAC. She considers that co-mediation of commercial\ndisputes between Chinese and Western parties to be essential \u2013 that it is practically\nimpossible for a single mediator to serve both parties possessing such\ndistinctive cultural predispositions. \nWang Fang reviewed the history of commercial mediation in China, which\nis intrinsic to the economy of the society and took institutional form in the\nearly years of the Republic, starting in 1902 through Chambers of Commerce such\nas the one in Shanghai established in 1912. \nCurrent government policies strongly support both domestic and cross-border\nmediation as part of what Wang Fang terms a policy of \u201cdiversified dispute\nresolution mechanisms.\u201d The Belt\/Road mechanism\nhas created occasions for increased attention to rapid dispute resolution mechanisms,\nmost recently statements emanating from a January 23, 2018 reform committee and\na similar notice dates January 12, 2017 concerning intellectual property rights. She also emphasized the importance of strategic\npartnerships with non-Chinese commercial mediation centers, and agreed with the\nidea that co-mediation has an important role in addressing commercial disputes. Most\nof CCPIT\u2019s caseload of 2,000 cases per year continue to be internal, but joint\ncenters with Italy, US, South Korea, Malaysia and other markets signify growth\nin international mediations. CCPIT also\nhosts an International Mediation Summit annually since 2016. The 2019 Summit will be held in October 16-18\nin Chongqing.<\/p>\n\n\n\n
This event attracted over 100 delegates from 20 countries in five continents.\u00a0 We worked hard and played hard. The 27th<\/sup> meeting of UIA World Mediation Forum is scheduled for January 17-18, 2020 in Milan.\u00a0 I have already marked my calendar.<\/p>\n\n\n\n At the 26th convening of the UIA World Mediation Forum in Zurich on March 5-6, 2019, a panel on whether mediation should be compulsory, among representatives of France, the US, Switzerland, and Italy, wrestled with intriguing philosophical considerations.\u00a0 Is compulsory court annexed ADR inconsistent with the principle of judicial access?\u00a0 Should conciliation, rather than mediation, …<\/p>\n![\"Image](\"https:\/\/pbs.twimg.com\/media\/DwpUx7nWoAAA3dD.jpg\")
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